Briefs Back Same-Sex Marriage, Right to Education

NASW urged justices to support same-sex couples’ right to marry and students’ right to an education in separate friend-of-the-court briefs recently in California and North Carolina.

In the matter of Perry v. Schwarzenegger, NASW, its California chapter and several other prominent organizations asked the U.S. District Court for the Northern District of California to invalidate Proposition 8, a ballot initiative approved in 2008 by California voters that amended the state’s constitution “to provide that only marriage between a man and a woman is valid or recognized in California.”

NASW contends that denying same-sex couples the right to marry flies in the face of the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution. In its brief, the association asserted that the state’s actions are “precisely what the U.S. Supreme Court condemned” in its landmark 1954 civil rights decision Brown v. Board of Education.

“By making the institution of marriage available to opposite-sex couples only, relegating same-sex couples to the separate — and thus inherently unequal — institution of domestic partnership, the State of California enshrines the stigmatization of gay men and women,” the brief said.

The brief cites the weight of scientific research demonstrating the severe adverse psychological and social effects of stigma on gay men and lesbians, and argues that children of same-sex parents are harmed by the state’s treatment of same-sex couples as “different and implicitly of lesser standing.”

The brief was prepared by the law firm Covington & Burling, LLP, and joined by the American Anthropological Association, American Psychoanalytic Association and the California chapter of the American Academy of Pediatrics.

The trial concluded in January and a decision had not been reached as of NASW News deadline.

In the matter of King v. Beaufort County Board of Education, NASW joined several other prominent organizations in urging the North Carolina Supreme Court to reverse an appeals court decision that granted school officials in that state “largely unfettered discretion” to exclude students from the classroom, “even when such an infringement on students’ rights is unwarranted, excessive and injurious,” the brief said.

The case stems from an incident in which students who took part in a January 2008 fight at Southside High School in Chocowinity, N.C., were suspended for the remainder of the school year without access to alternative education programs.

NASW also requested that the Supreme Court send the case back to a trial court for further proceedings, insisting that “there is ample evidence that schools across North Carolina over-rely upon exclusionary discipline practices [such as prolonged suspension and expulsion] that undermine students’ educational opportunities, put them at greater risk for involvement with the juvenile or criminal justice systems, and yet fail to demonstrate improvements in school safety or the quality of the learning environment,” the brief said.

Legal teams from the Advancement Project and Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and Indiana University Professor of Counseling and Educational Psychology Russell Skiba prepared the brief, which was filed by attorneys with the University of North Carolina Center for Civil Rights.

The case was argued before the seven justices in Raleigh on March 22.

NASW hopes the U.S. Supreme Court will agree to hear Encarnacion v. Astrue. The case concerns the Social Security Administration’s “non-combination” policy for determining children’s eligibility for disability benefits, which the association and other advocacy organizations attest excludes some children in violation of the Social Security Act.

The widely used yet informal non-combination policy was not published for public comment in accordance with the usual procedures for government rulemaking, NASW Associate Counsel Sherri Morgan noted.

Under the methods communicated in the policy, a child is entitled to Supplemental Security Income if determined to be mentally or physically impaired in at least one of six defined areas of functioning or “marked” limitations in two or more areas. Impairments not rising to the level of “marked” do not count toward eligibility, regardless of their combined impact on a child’s level of functioning.

On June 4, 2009, the U.S. Court of Appeals for the Second Circuit affirmed the SSA’s non-combination policy. In an amicus brief in support of a petition for writ of certiorari, or judicial review, NASW urged the Supreme Court to reverse the circuit court’s opinion, noting that the policy is “contrary” to commonly accepted medical practice and science, congressional intent and legal precedent.

The SSA’s policy “inevitably denies benefits to many children with very serious limitations, including children who may be as disabled, or even more disabled, than others who have been found eligible for SSI benefits,” the brief said.

Joining NASW in submitting the brief — prepared by a pro bono legal team from Strook & Strook & Lavan, LLP, and attorneys from Community Legal Services Inc. and the Bazelon Center for Mental Health Law — were the Children’s Defense Fund, National Alliance on Mental Illness, Mental Health America and National Association of School Psychologists.